Sex and Gender Issues Roil US Society - and High Court

BOSTON
— Some 30 years after the "sexual revolution" and the advent of the women's movement, issues that used to be neglected or only whispered about are increasingly demanding the attention of the nation's most staid institution - the United States Supreme Court.

In greater volume and variety, cases related to gender, sexual identity, and relations between the sexes are reaching the high court. Their prevalence on the docket during the past two years underscores how America's social and political waters are still roiled by issues of sex and gender.

But the cases also show how courts and judges, from the lowest to the highest, are often perplexed over how to weigh expanding claims of freedom with strong moral claims.

"The court tends to be some handful of years behind society, and now it is catching up," says Richard Paccele of the University of Missouri in St. Louis, a Supreme Court analyst. "Traditionally, the court would stay away from such cases, but state legislatures have given it no choice."

Already this year, the high court has ruled in cases on abortion clinics, "deadbeat" parents, and standards for prosecuting sexual-harassment charges. It also left intact a lower-court ruling that requires Brown University in Rhode Island, and now universities across the US, to create equal opportunity for men and women athletes. (For pending cases, see story at right.)

Last year, sex and gender were at the heart of the two most important decisions of the term. In a historic Colorado case, the justices ruled that gay men and women could not be denied participation in state and local politics on the basis of their homosexuality. (Colorado voters in a 1992 referendum had blocked gay political efforts.) The court next struck down a 157-year-old Virginia tradition by ruling that women could not be excluded from the state's prestigious all-male Virginia Military Institute.

Today, moreover, authors of law school textbooks are struggling to keep track of a new set of sex and gender issues, such as "same sex" marriages. A court in Hawaii ruled that such marriages are legal, and the case is pending before the Hawaii Supreme Court - a likely stop-off before reaching the US Supreme Court.

"Sexual orientation is a developing area of the law," says Lee Epstein of Washington University in St. Louis, co-author of "Constitutional Law for a Changing America." "You look at the Ellen DeGeneres issue on TV. It has become a mainstream question, and the Supreme Court's docket is often a microcosm of the mainstream issues important to the public."

The makeup of the court itself has a gender diversity thought impossible 30 years ago. Two of the nine justices are women. Gender and behavior became a national drama, moreover, in the 1991 Senate confirmation hearing of Justice Clarence Thomas, who was accused of unwanted sexual advances by a former federal employee, Anita Hill, who worked for Mr. Thomas at the Equal Employment Opportunity Commission during the Reagan administration.

WHETHER gender on the bench matters was illustrated early this term in the case of an indigent mother whose daughter was adopted by the father's new wife. A Mississippi court barred the mother from seeing the child, and then said she must pay $2,352 in filing fees for the court to hear an appeal. During a Supreme Court argument in October, a lawyer for Mississippi flatly stated that the case had nothing to do with motherhood and that, in any event, a mother had no "fundamental right" of interest in her child - causing Justices Sandra Day O'Connor and Ruth Bader Ginsburg to disagree vehemently.

Before the 1960s, the high court had considered few gender- or sex-related claims. Since then, however, it has issued a steady stream of rulings on discrimination, equality, pornography, and privacy rights related to gender. Roe v. Wade, establishing a woman's right to choose an abortion, is a landmark. The so-called Loving decision in the 1970s legalized interracial marriage. Bowers v. Hardwick, a controversial 1985 case, upheld Georgia state laws against sodomy.

Yet in the more complicated legal climate of the 1990s, sex and gender issues are not as clear-cut as they once seemed, experts say. They often come "bundled into" other issues. A current case involving pornography on the Internet, for example, pits those who want to protect children from smut against those who decry censorship.

Even last year's Hollywood film "The People vs. Larry Flynt," which dramatized the odyssey of a soft-porn publisher who took his case to the Supreme Court, provides an example. A number of civil libertarians, who abhor the degradation of women they felt Mr. Flynt's Hustler magazine represents, nonetheless supported his right to publish.

"In the '50s, '60s, and '70s it used to be easy to go to court and structure a claim," says Dr. Paccele. "Today, each decision potentially unwinds doctrine in five other areas."

In general, court clashes over sex boil down to a struggle over strains of law embodied by "traditionalists" versus "purists," says New York University law professor Ronald Dworkin.

Traditionalists argue that popular morality embedded in Americans' traditions is the proper way to determine law - and that one set of new rights, such as those in the Roe v. Wade decision, do not transfer to other categories, such as gay rights.

Purists argue, however, that the principles of constitutional law have an integrity that allow rights to be interchangeable across a broad spectrum of issues and claims.

SEX AND GENDER ISSUES PACK SUPREME COURT DOCKET

The high court is expected to decide several such cases by the end of June, including the following.

* Sexual 'predation.' Case will determine if Kansas (and dozens of other states) can lock up 'sexual predators,' often pedophiles, even after they've served their prison time.

* Pornography. Case will decide if a new law by Congress to police pornography on the Internet is constitutional.

* Sexual harassment. Justices will decide whether President Clinton is immune from civil prosecution while in the Oval Office. Paula Jones, a former Arkansas employee, has sued the state's former governor, alleging sexual harassment.